Citation Nr: 0806003
Decision Date: 02/21/08 Archive Date: 03/03/08
DOCKET NO. 04-39 593 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for essential
hypertension.
2. Entitlement to service connection for arteriosclerotic
heart disease.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Tanya A. Smith, Counsel
INTRODUCTION
The veteran had active service from September 1966 to April
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a February 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, which denied claims of entitlement to
service connection for post-traumatic stress disorder (PTSD),
hypertension, arteriosclerotic heart disease, and anxiety.
In June 2005, the veteran testified at a Travel Board hearing
before the undersigned Veterans Law Judge. A transcript of
this hearing is associated with the claims folder. In August
2006, the Board remanded this case for further evidentiary
development. On Remand, in an August 2007 rating decision,
the Appeals Management Center (AMC) granted service
connection for PTSD to include anxiety. Thus, as the benefit
sought on appeal has been granted, there remain no more
issues for appellate consideration with respect to these
disabilities. The case has now been returned to the Board
for further appellate action on the remaining claims.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the veteran
if further action is required.
REMAND
After a review, the Board observes that further development
is required prior to adjudicating the veteran's claims.
The veteran seeks service connection for essential
hypertension and arteriosclerotic heart disease as secondary
to his PTSD with anxiety. In the August 2006 Remand, the
Board previously noted that at the time of a VA
cardiovascular examination in December 2002, the veteran
received a diagnosis of possible history of hypertension with
currently normal blood pressure, and arteriosclerotic heart
disease. Also noted was a diagnosis of history of chronic
anxiety. While in the opinion of the examiner, the veteran's
heart disease and possible hypertension were related to the
major risk factors of tobacco use and hypercholesterolemia,
the examiner speculated that other "stressors," including
anxiety, might have been a factor in the development of these
pathologies.
Current VA treatment records show that the veteran continues
to suffer from heart disease and that he takes Diltiazem for
well-controlled hypertension. As service connection has been
established for PTSD and anxiety, and there is medical
evidence that indicates that a possible relationship may
exist between the claimed disorders and the veteran's PTSD
with anxiety, the Board finds that it is necessary to afford
the veteran a VA examination and obtain a medical opinion on
the probability (as distinguished from a mere possibility)
that such a relationship exists. See 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2007).
Since the Board has determined that a medical examination is
necessary in the instant case, the veteran is hereby informed
that 38 C.F.R. § 3.326(a) (2007) provides that individuals
for whom examinations have been authorized and scheduled are
required to report for such examinations. The provisions of
38 C.F.R. § 3.655 (2007) address the consequences of a
veteran's failure to attend scheduled medical examinations.
That regulation provides that, when entitlement to a benefit
cannot be established or confirmed without a current VA
examination and a claimant, without "good cause," fails to
report for such examination scheduled in conjunction with an
original compensation claim, the claim shall be rated based
on the evidence of record. However, when the examination is
scheduled in conjunction with any other original claim, a
reopened claim for a benefit which was previously disallowed,
or a claim for increase, the claim shall be denied.
Ongoing medical records should also be obtained. 38 U.S.C.A.
§ 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet.
App. 611 (1992) (providing that VA medical records are in
constructive possession of the agency, and must be obtained
if the material could be determinative of the claim).
Finally, the Board notes that the August 2002, July 2004, and
August 2006 VCAA notices only advised the veteran of what
information and evidence is needed to substantiate a claim
for direct service connection. The RO/AMC should send the
veteran a corrective VCAA letter that complies with the
notification requirements of 38 U.S.C.A. § 5103(a) (West
2002) and 38 C.F.R. § 3.159(b) (2007) and includes a
description of the evidence needed to substantiate a claim
based on secondary service connection.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should send the veteran a
corrective VCAA notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) that
includes a description of the evidence
needed to substantiate a claim based on
secondary service connection.
2. Obtain any relevant records
adequately identified by the veteran,
including any ongoing medical records
pertinent to the disabilities on appeal
from the Montgomery, Alabama VAMC dating
since July 2007 and the Tuskegee, Alabama
VAMC dating since February 2006
3. The RO/AMC should schedule the
veteran for a VA cardiovascular
examination by a physician to determine
the nature of any current hypertension
and arteriosclerotic heart disease and to
provide an opinion as to their possible
relationship to a service-connected
disability. The claims file should be
provided to and reviewed by the examiner,
and the examination report should reflect
that this was done.
The examiner should opine as to whether
it is at least as likely as not (50
percent probability or greater) that any
hypertension and arteriosclerotic heart
disease were caused by or aggravated
(permanently worsened beyond the normal
progress of the disorder) by service-
connected PTSD with anxiety. If the
examiner finds that the hypertension and
arteriosclerotic heart disease are
aggravated by the PTSD with anxiety,
he/she should quantify the degree of
aggravation, if possible.
4. Thereafter, the RO/AMC should
readjudicate the claims. If the benefit
sought on appeal remains denied, the
veteran and his representative should be
issued a supplemental statement of the
case, and given an opportunity to respond
before the case is returned to the Board.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).